In the summer of 2005, this speculation became newsworthy due to
the announcement of the retirement of
Associate JusticeSandra Day O'Connor on July 1.
President Bush announced federal appellate judge John Roberts as
O'Connor's replacement on July 19.

Overview

Throughout much of the history of the United States, the Supreme Court of the
United States was clearly the least powerful branch of the
government, just as is often considered the Founding Fathers'
intention, and nominations to that body, although important, were
not the source of great political controversy as they are today.
Until the death of Chief Justice Rehnquist, the composition of the
Supreme Court had remained unchanged since 1994, the second longest
time period without a membership change in U.S. history (the
longest having been from 1812–1823).

The
filibuster

Soon after the inauguration of Bush as president in January
2001, many liberal
academics became worried that he would begin packing the federal
judiciary with conservative jurists. Yale law professor
Bruce Ackerman
wrote an article in the February 2001 edition of the liberal
magazine The American Prospect that
encouraged the use of the filibuster to stop Bush from placing any
nominee on the Supreme Court during his first term.[4] In
addition, law professors Cass Sunstein (University of Chicago) and
Laurence Tribe
(Harvard), along with Marcia Greenberger of the National Women's Law
Center, counseled Senate Democrats in April 2001 "to scrutinize
judicial nominees more closely than ever." Specifically, they said,
"there was no obligation to confirm someone just because they are
scholarly or erudite."[5]

On May 9, 2001, President Bush announced his first eleven court
of appeals nominees in a special White House ceremony.[6] There
was immediate concern expressed by Senate Democrats and liberal
groups like the Alliance for Justice.[7][8]
Democratic Senator Charles E.
Schumer of New York said that the White House was "trying to
create the most ideological bench in the history of the
nation."[9]

From June 2001 to January 2003, when the Senate was controlled
by the Democrats, the most conservative appellate nominees were
stalled in the Senate
Judiciary Committee and never given hearings or committee
votes.[10]
However, after the 2002 mid-term elections in which the Republicans
regained control of the Senate by a 51-49 margin, these same
nominees began to be moved through the now Republican-controlled Senate
Judiciary Committee.[11]

The
"nuclear option"

As a result of these ten filibusters, Senate Republicans began
to threaten to change the existing Senate rules by using what
Senator Trent Lott
termed the "nuclear
option". This change in rules would eliminate the use of the filibuster to prevent
judicial confirmation votes. However, with only a two vote
majority, the Republicans were in a weak position to implement this
procedural maneuver.

Things changed in 2005 due to the 2004 elections. With President
Bush winning re-election by a clear margin and the Republicans
picking up further Senate seats (55-45) in the 109th Congress, the "nuclear option" became
a more viable strategy to ensure confirmation. On May 24, 2005,
seven moderate senators of each party, called the Gang of 14, in a deal to
avoid the use of the "nuclear option", agreed to drop the
filibuster against three of the seven remaining affected court of
appeals nominees (Priscilla Owen, Janice
Rogers Brown, and William Pryor) but not two others
(Henry Saad and William Myers).[14] In
addition, the senators in the group agreed to block future judicial
filibusters except in cases involving "extraordinary
circumstances".

As a direct result of the deal, the two filibustered nominees
not mentioned in it (David W. McKeague
and Richard Allen Griffin) were
confirmed. Despite these agreements, however, some observers noted
that the chances were still high that the Democrats would
filibuster any of the ten originally filibustered nominees if he or
she were later nominated to the Supreme Court, especially Owen,
Pryor or Brown.

Although there has been a long history of Supreme Court nominees
being
rejected, only one Supreme Court nominee has ever been
filibustered. In 1968, Chief Justice nominee Abe Fortas was filibustered and withdrew
after a short period.

During the summer of 2005, it was assumed that the Democrats
would filibuster any Supreme Court nominee who would change the
ideological composition of the court. Initially, this conjecture
seemed to be borne out when conservative jurist John Roberts
was renominated to replace conservative Chief Justice Rehnquist.
The confirmation process went relatively smoothly with no threat of
a filibuster. Later, however, the hypothesis was disproved. When
Bush chose another conservative appellate judge, Samuel Alito, to
replace moderate Justice Sandra Day O'Connor, opponents of
Alito could not generate enough votes to prevent cloture from being invoked on his nomination.
Very soon afterward, he was successfully confirmed.

Unexpectedly, on July 1, 2005, it was not Rehnquist who
announced his retirement, but O'Connor. On July 12, Bush met at the
White House with the party leaders and ranking Judiciary Committee
members from the two major parties — Republicans Bill Frist and Arlen Specter, and
Democrats Reid and Patrick Leahy — to discuss the nomination
process. During the meeting, the Democrats offered the President
the names of three "moderate" Hispanic federal judges that they could
accept: Sonia
Sotomayor of the Second
Circuit, Edward Prado of the Fifth
Circuit, and Ricardo Hinojosa, a district court
judge from Texas. Reid later told the press he was disappointed
that the President had not chosen to discuss his own choice of
possible candidates with the Democrats. In the conservative
magazine National Review, the three
candidates suggested by the Democrats were quickly dismissed as
being offered in bad faith because they were too liberal for a
conservative president to seriously consider.[17]
Judge Sotomayor was later nominated to the
Supreme Court by Democratic President Barack Obama and confirmed as an Associate
Justice in 2009.

On the same day as the meeting with the President, First Lady Laura Bush announced in
an interview during an official visit to Africa a preference for
her husband to nominate a woman to O'Connor's seat. Bush was
surprised at his wife's public comments on the Supreme Court, but
said he would be open to hearing her advice when she returned from
her trip.

John
Roberts nomination

John Roberts, now Chief Justice, is pictured here with President
Bush at the announcement of his first nomination on July 19,
2005.

On the evening of July 19, 2005, Bush announced his first
Supreme Court nominee, John G. Roberts, Jr., a highly regarded
former Supreme Court litigator and conservative judge on the
D.C. Circuit Court of Appeals. During the day leading up to the
announcement, there had been much media speculation that one of
either two female judges on the Fifth Circuit would get the nod: moderate
Edith
Brown Clement or conservative Edith H. Jones.[18][19]
Clement was considered the frontrunner. About an hour before the
televised announcement, however, information was leaked to the
press concerning the choice of Roberts.[20][21]

On September 3, 2005, Rehnquist died. Two days later, on the
morning of September 5, Bush announced that he would switch
Roberts' nomination and instead nominate him for the newly vacant
post of Chief Justice of the
United States, once again leaving O'Connor's vacancy without a
replacement nominee.

Possible O'Connor
replacements

On September 6, Specter encouraged the President to fill
O'Connor's position with a woman, saying that the Supreme Court
should have a minimum of two female justices.[22]
On September 9, Laura Bush reiterated her previous wish to also see
a female nominee.[23]

On the Thursday before Roberts' confirmation hearing, one of
Reid's aides said that the nomination of several candidates said to
be on the President's short list to replace O'Connor — conservative
appellate Judges J. Michael Luttig, Emilio Garza and Edith Jones — would be unacceptable to the
Democrats, implying that any of them would be filibustered.[24]
Several days later, Specter made it known that he felt that it was
too early for Bush to elevate Attorney General Alberto
Gonzales to the Supreme Court.[25]

Roberts' confirmation hearing for Chief Justice was held from
Monday, September 12, to Friday, September 16. During the week of
the hearing, there was much talk that Priscilla Owen would be the next
nominee, but columnist Robert Novak reported that by Friday, Reid
had told Frist that Judge Owen would also be filibustered if
chosen.[26][27]

On Wednesday, September 21, Bush had another meeting with
Senators Frist, Specter, Reid and Leahy to discuss possible Supreme
Court nominations. On the day before, Laura Bush mentioned publicly
for the third time that she would like to see a female nominee. At
the same time, Reid stated that the nomination of any of the
previously filibustered appellate nominees would be viewed by the
Democrats as "a poke in the eye with a sharp stick".[28] He
restated this position during the meeting with the President when
he warned against nominating either Brown or Owen.[29]
Again, Reid and Leahy offered the names of appeals court Judges Sonia Sotomayor
and Ed
Prado and district court Judge Ricardo Hinojosa.[30]
Again, Bush did not offer any names of his own to discuss. On
Thursday, September 22, Roberts' nomination was voted out of the
Senate Judiciary Committee by a bipartisan vote of 13-5.

During a press conference on Monday, September 26, Bush implied
that his next nominee would be either a woman or a minority. In
making his decision concerning O'Connor's replacement, he said he
would keep in mind that, "diversity is one of the strengths of the
country".[31] John
Roberts was confirmed by the United States Senate on Thursday,
September 29, by a vote of 78-22[1]
and was sworn in both privately and publicly later the same
day.

Harriet
Miers nomination

There was immediate and intense opposition to Miers' nomination,
primarily from conservative Republicans. Principal complaints
included:

That her credentials under objective standards were not
sufficient to qualify her for the position.

That her nomination was the result of political cronyism. Because her legal
career did not compare to those of other possible conservative
female candidates (like federal appellate judges Edith Jones, Karen J.
Williams, Priscilla Owen, and Janice
Rogers Brown), many thought that President Bush probably
nominated Miers for her personal loyalty to him rather than for her
qualifications.

Samuel
Alito nomination

Associate Justice Samuel Alito acknowledges his nomination on
October 31, 2005, with President Bush looking on.

Bush moved quickly to find an alternative nominee to Miers, a
nominee who would have both the credentials that Miers lacked and a
conservative judicial philosophy that could be documented. On the
morning of Monday, October 31, Bush announced the nomination of
well-known conservative Judge Samuel A. Alito, Jr., a fifteen year
veteran of the Third
Circuit Court of Appeals.

Alito's confirmation hearing was held from Monday, January 9,
2006, to Friday, January 13. On Tuesday, January 24, his nomination
was voted out of the Senate Judiciary Committee on a 10-8 party
line vote. Debate on the nomination began in the full Senate on
Wednesday, January 25. Despite a last minute effort by Democratic
Senator John Kerry to
filibuster,[34] a cloture vote to end debate
passed 72-25 on Monday, January 30. On the morning of Tuesday,
January 31, Alito was confirmed to the Supreme Court by a vote of
58-42.[2]
He was sworn in privately later that same day. The next day, he was
publicly sworn in.

Epilogue

At the end of the 109th Congress, the Gang of 14 deal expired.
On November 7, 2006, the Democrats retook control in the 110th
Congress. Starting in January 2007, they possessed a 51-49 majority
in the Senate. As the new Senate majority, the Democrats easily
blocked several conservative appellate judicial nominees without
resorting to the filibuster. Conservative appellate nominees
like Peter
Keisler, Robert J. Conrad and Steve A.
Matthews were blocked in committee and never given a hearing.
If a Supreme Court justice had chosen to retire during the 110th Congress, it would have been easy for
the Democrats to have blocked his proposed replacement in
committee, or even by a party-line vote on the Senate floor, if it
somehow came to that. As it developed, no Supreme Court justice
retired or died during the 110th Congress.

Names
frequently mentioned

Following is a list of individuals who were mentioned in various
news accounts as the most likely potential nominees for a Supreme
Court appointment under Bush: